Whether a sectional owner, who is not a right defined in Article 2 subparag. 6 of the Act on the Ownership and Management of Aggregate Buildings, can arbitrarily determine a right to use a site (negative), and the method by which a sectional owner who has a right to use a site, reserves a part of the right to use a site and relocates all of the remainder of the right to use a site together with a section for exclusive use or reserving the entire right to use a

Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act") defines the right to use a site as "the right which a sectional owner has against a site of a building in order to own a section for exclusive use." Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings defines the right to use a site as "the right which a sectional owner has against a site of a building in order to own a section for exclusive use." The reason why the Act provides for the definition of the right to use a site is to clarify the scope of the right to use a site in accordance with Article 20 of the Act on the Ownership and Management of Aggregate Buildings. Therefore, the right to use a site under the Act on the Ownership and Management of Aggregate Buildings, which cannot be disposed of separately from a section for exclusive use, is defined as Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings, i.e., the right to use a site in order to own a section for exclusive use by a sectional owner. However, a sectional owner who has a right to use a site under the Act on the Aggregate Buildings Act, can not be reserved the right to use in whole or part of a section for exclusive use.

Article 2 Subparag. 6, and Article 20 of the Act on the Ownership and Management of Aggregate Buildings

[Defendant-Appellant] Korea Inc. (Law Firm Barnul et al., Counsel for defendant-appellant-appellant)

The Bankruptcy Trustee of Daejeon Mutual Savings and Finance Company (Law Firm Gapp, Attorneys Song Jin-jin et al., Counsel for the bankrupt)

Korea Land Trust Co., Ltd. (Law Firm Sejong, Attorneys Kang Shin-op et al., Counsel for the plaintiff-appellant)

Gap Development Co., Ltd. (Law Firm Lee & Lee, Attorneys Kim Yong-nam et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na56063 decided October 31, 2013

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part arising from the Plaintiff’s participation in the appeal, and the remainder are assessed against the Plaintiff, respectively.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 3

A. Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act") defines the right to use a site as "the right which a sectional owner has against a site of a building in order to own a section for exclusive use." However, the Act on the Ownership and Management of Aggregate Buildings provides for the definition of the right to use a site in accordance with Article 20 of the Act on the Ownership and Management of Aggregate Buildings. Therefore, the right to use a site in accordance with the disposition of a section for exclusive use and that can not be disposed separately from a section for exclusive use is defined under Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings. In other words, a sectional owner who has the right to use a site in accordance with the Act on the Ownership and Management of Aggregate Buildings cannot arbitrarily designate another right as the right to use a site in accordance with the Act on the Ownership and Management of Aggregate Buildings. However, a sectional owner who has the right to use a site in accordance with the Act on the Ownership and Management of Aggregate Buildings may own a part of the right to use a site in his/her own exclusive ownership or by reservation.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) As to the instant land among the instant land on December 24, 1996, Seoul Jongno-gu ( Address 1 omitted) and the instant land on October 22, 1997, the Defendant entered into a land trust agreement with the Defendant to newly construct and sell a commercial building on the instant land (hereinafter “instant trust agreement”). As to the instant land on December 24, 1996 due to the said trust agreement, on October 22, 1997, the Seoul Jongno-gu Co., Ltd. ( Address 2 omitted) and ( Address 3 omitted), the ownership transfer registration was completed in the future with respect to the instant land.

F. On October 25, 2000, New Entertainment completed the registration of ownership transfer on the whole land of this case on the ground of the attribution of trust property in its own future on October 25, 2000, and again completed the registration of ownership transfer on October 26, 2000 on the ground of a trust contract in the future of Defendant.

(2) According to the instant trust contract, the Defendant selected a construction company and had it construct the building (Article 3(1)), appropriated funds necessary for the construction of the building as trust property, or borrowed funds at the expense of the Hann Entertainment and the beneficiary (Article 4(1)). Upon the termination of the trust, the trust property, including the instant building, belongs to the first beneficiary (Article 24 subparag. 3).

On July 14, 1997, the Defendant obtained a building permit by designating the Defendant as the owner of the building in accordance with the instant trust contract, and concluded a construction contract with the construction company to construct the instant aggregate building.

(3) On February 27, 200, the construction of the roof slab bars of the instant aggregate building was completed, and the Defendant changed the name of the owner of the instant aggregate building on October 28, 200 to New Entertainment.

Accordingly, on November 16, 200, the registration of preservation of ownership was made on each of the sectional sections of the instant condominiums in the name of the New Zealand, and the defendant registered the transfer of ownership on November 21, 2000 on each of the sectional sections of the instant condominiums based on the trust contract dated November 7, 200.

(4) Meanwhile, the Defendant and the New Entertainment agreed to sell a part of the instant aggregate building that had not been completed from around August 1997 to July 199, and to sell and sell or lease it to the buyer without concluding a separate lease contract, and the buyer uses the instant land for a period of forty (40) years from the commencement date of sale to the buyer without concluding a re-contract. The right to use the instant land shall be transferred to the buyer according to the sale of the partitioned building by the buyer, and it may be used only for the purpose of maintaining, managing, and using the partitioned building, and it shall not be sold or leased separately from the partitioned building.

(5) On June 18, 2002, the defendant terminated the trust contract of this case and settled the trust property, and agreed to transfer the ownership of each of the instant partitioned buildings in accordance with Nos. 8, 9, 11, and 12 of the annexed Table 8, 9, 12 of the judgment of the court below, except each of the instant partitioned buildings, among the instant land and the instant condominiums, to transfer the ownership of part of the unsold portion except each of the instant partitioned buildings. Accordingly, on June 19, 2002, the ownership transfer registration was made on the ground that the trust property belongs to the trust property in the future.

(6) The Plaintiff purchased the instant land in the public sale procedure executed by the Korea Asset Management Corporation and paid in full the sales price on August 21, 2009, and registered the transfer of ownership on November 5, 2009.

On February 18, 2011, the Defendant completed the registration of ownership transfer with respect to each of the instant sub-sections to the Intervenor joining the Defendant, and completed the registration of ownership transfer in the future on December 31, 2010 and November 16, 201 with respect to sub-sections Nos. 1 through 7 and 10 sold from August 1997 to July 199.

C. In light of the contents of the instant trust agreement and the progress of new construction of the instant aggregate building, which can be known by such factual basis, the Defendant would have acquired the ownership of each of the instant divided buildings as the sectional ownership was established on February 27, 200, and at the time, the Defendant, as the owner of the instant land, has the ownership as the right to own each of the instant divided buildings, and thus the ownership of the instant site was established as the right to use the site for each of the instant divided buildings.

In addition, in light of the legal principles as seen earlier, since the Defendant’s ownership has the unity of the right to use site under the Act on the Ownership and Management of Aggregate Buildings as the right to use site and the disposition of the section for exclusive use, even if the Defendant and Hanu Entertainment expressed their intent to determine “the right to use land without re-contract for forty (40) years from the commencement date of the sale of the building,” not as the right to use site ownership, in the process of concluding the contract for sale and purchase with the buyer before the completion of the condominium, the right to use site under the Act on the Ownership and Management of Aggregate Buildings cannot be the right to use site under the Act on the Ownership and Management of Aggregate Buildings. Furthermore, it cannot be seen that the regulations or notarial deeds allowing the separate disposition of the section for exclusive use and the right to use site have been prepared in this case. Therefore, it is null and void for the portion corresponding to the right to use site of each of the instant sections separated from each of the instant sections among the transfer registration of the ownership of each of the instant land in the process of public sale.

Therefore, the plaintiff's assertion on the premise that the plaintiff acquired ownership of the part corresponding to the right to use the site of each of the instant partitioned land among the instant land is not acceptable.

Although the reasoning of the lower court is somewhat inappropriate, it is just to have rejected the Plaintiff’s assertion. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the requirements for establishment or confusion of the right to use site under the Aggregate Buildings Act, or by omitting

2. Regarding ground of appeal No. 4

The right to use a site is a right that a sectional owner has on the site of a building for the purpose of owning a section for exclusive use, and it is not necessary to take special measures other than the existence of an aggregate building and the right that a sectional owner is entitled to use the site for the purpose of owning a section for exclusive use. Considering such circumstances, the term “a bona fide third party”, which cannot be set up against the prohibition of separate disposal under Article 20(3) of the Aggregate Buildings Act, refers to a third party who has acquired a parcel of land subject to the right to use the site, in principle, without gathering the circumstances that are set forth as a site for an aggregate building (see Supreme Court Decision 2009Da26145, Jun. 2

Examining the reasoning of the judgment below in light of the above legal principles and records, it is just and acceptable that the court below determined that the plaintiff cannot be deemed a bona fide third party under Article 20 (3) of the Aggregate Buildings Act solely on the ground that the plaintiff asserted is not a bona fide third party under Article 20 (3) of the Aggregate Buildings Act. In so doing, the court below did not err by misapprehending the legal principles or omitting judgment

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the Plaintiff’s Intervenor, including the remainder due to the Defendant’s participation, and the remainder is assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)